The Magistrate’s summary power to remove public nuisances under Section 133 Cr.P.C. is a public duty; where factual findings regarding the existence of an obstruction on a public way are based on reliable reports and admissions, such findings are not subject to interference under Article 227.

JUDGMENT :

AJAY KUMAR-II, J.

1. Heard Sri Rajesh Kumar Singh, learned counsel for the petitioner, learned A.G.A. for the State, Sri Ashwani Kumar Singh, learned counsel for the respondent no. 2 and perused the record.

2. The present petition under Article 227 of the Constitution of India has been filed with a prayer to set-aside the order dated 19.03.2025, passed by Additional Session/Special Judge, SC/ST Act, Kushinagar at Padrauna, passed in Criminal Revision No. 200/2024, under Section 133 Cr.P.C., Police Station Kaptanganj, District Kushinagar.

3. Learned counsel for the petitioner submitted that the respondent no. 2 filed a case under Section 133 Cr.P.C. against the petitioner on 4.6.2018 before Sub Divisional Magistrate, Hata, Kushinagar for removal of ladder in question. On direction of concerned SDM, SHO, Kaptanganj, Kushinagar submitted a report dated 13.9.2018 and SDM vide his preliminary order dated 22.10.2018 directed the petitioner to file his objection. Notice whatsoever, was not served upon the petitioner, Therefore, he could not file his objection in compliance of the order dated 22.10.2018. Therefore, SDM sought report from concerned Halka Lekhpal and he submitted his report dated 6.4.2022. SDM passed the order dated 11.4.2022 while confirming preliminary order dated 22.10.2018 and directed SHO, Kaptanganj to remove encroachment. The aforesaid order dated 22.10.2018 was challenged by the petitioner by way of filing Criminal Revision No. 111 of 2002 before the Sessions Judge, Kushinagar, which was allowed vide judgment and order dated 22.10.2022, while setting aside the impugned order dated 22.10.2022. Thereafter, the petitioner filed his objection in the said case. SDM Hata again sought report from the Revenue Inspector, who submitted his report on 14.10.2024. On receipt of aforesaid report, SDM, Hata passed impugned order dated 12.11.2024 directing the petitioner to remove the encroachment. The petitioner challenged the aforesaid order dated 12.11.2024 before the Sessions Judge, Kushi Nagar, however, his criminal revision was rejected vide judgment and order dated 19.3.2025.

4. It was strenuously argued by learned counsel for the petitioner that the ladder in question was constructed by the petitioner in his share (Sahan) 30 years ago. The disputed land was received by the petitioner in a family settlement and aforesaid construction has been made only in his share. There is no public pathway. Gram Pradhan has already given a certificate regarding the street in question that the same is not being used as a public pathway, but is used for flow of the rain water, while affirming stand of the petitioner that the said construction has been made by the petitioner in his own share (Sahan). Revenue authorities have submitted a false report in collusion with the respondent no. 2. The nuisance, if any, is caused only to the family of the respondents, the proceeding under Section 133 Cr.P.C. cannot be invoked. The impugned order dated 12.11.2024 passed by the SDM, is against the provisions of law and has been passed without complying the procedure prescribed under Sections, 133, 137, 138, 139, 140 Cr.P.C. Both the Courts below have no